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Canadians Abroad: a Policy and Legislative Agenda

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Canadians Abroad: a Policy and Legislative Agenda Canadian Centre for Policy Alternatives | Rideau Institute on International Affairs March 2016 Canadians Abroad A Policy and Legislative Agenda Gar Pardy About the Author Gar Pardy retired from the Foreign Service in 2003 and since has written extensively on foreign poli- cy issues and especially on those relating to con- sular services. Before retirement he was Director and Director General of Consular Services. Recent- ly, he published Afterwords: From a Foreign Service Odyssey, which contains numerous commentaries on the issues discussed in this paper. The book is available from Amazon or Chapters. ISBN 978-1-77125-272-0 Acknowledgements This report is available free of charge at www. Mark Warren and Michael Welsh offered helpful policyalternatives.ca. Printed copies may be or- comments in the preparation of this paper. Mr War- dered through the CCPA National Office for $10. ren is a researcher on human rights and Mr Welsh is retired from the Canadian Foreign Service where PleAse mAke A donAtIon... he was, before retirement, the Director General for Help us to continue to offer our Consular Affairs. publications free online. With your support we can continue to produce high quality research — and make sure it gets into the hands of citizens, journalists, policy makers and progres- sive organizations. Visit www.policyalternatives.ca or call 613-563-1341 for more information. The CCPA is an independent policy research organ- ization. This report has been subjected to peer re- view and meets the research standards of the Centre. The opinions and recommendations in this report, and any errors, are those of the authors, and do not necessarily reflect the views of the funders of this report. 5 Executive Summary and Recommendations 9 Introduction 12 Background 22 Discussion of Specific Issues Equality of Service Clemency and Protecting Canadians from the Death Penalty Dual Citizenship Transfer of Offenders Consular Service Fee Voting Abroad Mandela Rules for the Treatment of Prisoners Canadian Legal Representation Commissions of Inquiry Involving Consular Issues Consular Cases Involving National Security Privacy and the Media Revocation of Canadian Citizenship Oversight of Consular Policy and Cases International Conference on Consular Relations 45 Conclusions and Recommendations 48 Annex A 52 Annex B 53 Annex C 55 Annex D 58 Annex E 66 Annex F 69 Annex G 72 Annex H 74 Notes Executive Summary and Recommendations • Over the almost ten years of government by the Conservative Party of Canada numerous policy decisions, including amendments to various laws, were taken that initiated substantial change to Canada’s histor- ical approach in assisting Canadians in foreign countries — known collectively as consular services. Many of these changes played out in Parliament and in the press and often were challenged in the courts. More often than not the challenges were successful. • The historical approach of the universality of consular services for all Canadians was undermined and there was no assurance that all Canadians were treated with equity, fairness and consistency. • Omar Khadr, his brothers and other affected Canadians, strongly supported by lawyers, were central to many of these cases; more than fifty were filed with the Federal Court, the Federal Court of Ap- peal, the Supreme Court of Canada and various provincial courts. The decisions in these cases continue to be cited by others in simi- lar appeals to the courts. • These changes to long-standing laws and practices gave rise to char- ges of discrimination in the delivery of consular services. Some Can- adians were helped; others were not. Canadians Abroad: A Policy and Legislative Agenda 5 • Many cases involved issues associated with actions by the RCMP and CSIS; two Commissions of Inquiry were established and in turn they examined some of the associated consular issues. Their reports and recommendations have received little attention in the years since, yet the reasons for their establishment are stronger today than ever. • Little to no attention was paid to these issues either during the re- cent election or in the mandate letters provided to the ministers ap- pointed to manage Canada’s international affairs. This paper offers a review of the issues and provides specific recommendations for improvements. • The issues involved, in addition to that of discrimination in the pro- vision of consular services using Crown Prerogative, include clem- ency and the death penalty, dual citizenship, transfer of offenders, Consular Service Fee, voting abroad in Canadian elections, Mandela rules on the treatment of prisoners, Canadian legal representation, commissions of inquiry involving consular issues, consular cases in- volving national security, privacy and the media, the revocation of Canadian citizenship, oversight of consular policy and cases, and an international conference on consular relations. In summary, the recommendations for action by the Government of Canada are as follows: Crown Prerogative: Introduce a parliamentary resolution stating con- sular services to Canadians will be provided without discrimination and the government will disavow the use of the Crown Prerogative in such mat- ters. In the longer term, establish in law the obligation to provide consul- ar service to all Canadians and in doing so eliminate the use of the Crown Prerogative in this area. Clemency and the Death Penalty: Change existing policy so that clemency would be sought for all Canadians sentenced to death in foreign countries. Dual Citizenship: Seek agreements with countries where recognition of Canadian citizenship is a problem in providing consular services and estab- lish the obligation of Canada to extend such services to its dual citizens. In the longer term seek international agreement on a set of norms on the issue. Transfer of Offenders: Through amendments to the International Trans- fer of Offenders Act, curtail the discretion available to Minister of Public Safe- ty in considering applications for transfer by Canadian citizens. 6 Canadian Centre for Policy Alternatives Consular Service Fee: Establish a review of the use of the Consular Ser- vice Fee and the appropriateness of its current level. The review should be presented to Parliament. Voting Abroad. Remove the present five-year limitation on the right of a Canadian citizen resident abroad to vote in Canadian elections. Mandela Rules on the Treatment of Prisoners: Clearly state that Can- ada accepts the Mandela Rules on the Treatment of Prisoners and ensure they are reflected in Canadian prison policy. Canadian Legal Representation: Establish a review of the rules gov- erning Canadian legal representation of Canadians in difficulty abroad and provide new norms to ensure there is appropriate cooperation by officials in Global Affairs Canada on the matter. Commissions of Inquiry Involving Consular Issues: Review the rec- ommendations of the O’Connor and Iacobucci Commissions of Inquiry as they relate to consular policy and actions and ensure that appropriate ac- tion is taken if it is found that current policy and practices are inconsistent with them. Consular Cases Involving National Security: Establish the primacy of the rights of the Canadian citizen when information on national security is passed to foreign governments. Consular cases with national security con- cerns should be included in the development of new oversight procedures and organizations for national security. Privacy and the Media: Establish with the Privacy Commissioner guide- lines for the release of privacy information concerning consular cases when issues of public safety and interest are involved. Equally, the Privacy Com- missioner should provide guidelines for the use of information covered by the Privacy Act for policy analysis. Revocation of Canadian Citizenship: Remove from law the revocation of citizenship of citizens with a second citizenship when convicted of cer- tain crimes. Dual citizens should not be discriminated against on the basis of a second citizenship. [Update: Amendments introduced in late February to this effect.] Oversight of Consular Policy and Cases: Initially ensure the House of Commons Committee on Foreign Affairs or a sub-committee assume formal responsibility in matters of consular policy and cases. In the longer term explore the establishment of an independent authority reporting to Parlia- ment to deal with consular policy and cases and to receive from the public complaints on consular services. Canadians Abroad: A Policy and Legislative Agenda 7 International Conference on Consular Relations: Canada should play an active role in seeking international review of consular relations, in- cluding the Vienna Convention on Consular Relations. To that end Canada should host an international conference on the matter in 2017, the 50th an- niversary of the coming into effect of the Convention. 8 Canadian Centre for Policy Alternatives Introduction Consular proteCtion, or services to Canadians in difficulty in foreign countries, has never loomed large in the activities of the department of For- eign Affairs or in its current iteration, Global Affairs Canada. There have been efforts to provide the resources and skilled people to deliver such services and today, despite public complaints to the contrary, the ability of the de- partment to provide consular services is probably better than at any time in its history. However, over the past decade, there have been a number of sig- nificant changes in the policies governing such services. These
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